TaxTMI 
TaxTMI 
2021 (6) TMI 114
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..... Learned Lawyer Mr. Deepak Joshi appeared. 1. IA 18 of 2021 is filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 by the Applicant/Corporate Debtor in CP(IB) 759 of 2019. The instant application is taken on board at the request made by the Applicant/Corporate Debtor for preponing the matter by filing purshish, as the instant IA is fixed on 01.03.2021 and Corporate Debtor is facing hardship as there were fire took place in the factory premises. In view of that, the instant IA is listed today. It is submitted by the Applicant that they have informed the other side with regard to the preponement of the case. 2. It is submitted by Learned Senior Lawyer of the Applicant namely Mr. Percy Kavina, that CP(IB) 759 of 2019 was admitted by this Bench under Section 9 of the Insolvency and Bankruptcy Code, 2016 on 18.12.2020. On admission of the CP(IB) 759 of 2019 the Applicant/Corporate Debtor filed an appeal before the Hon'ble NCLAT. The Hon'ble NCLAT on hearing an appeal passed an order on 04.02.2019 with an observation which is reflected hereinbelow for ready reference. Observation as under: "In view of this factual position and keeping in view ....
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....Lawyer is appearing on behalf of the Petitioner/Corporate Debtor namely Mr. Percy Kavina further submitted that fire took place in the factory premises which caused a substantial loss. Though, the company is paying the salary/wages of the employees and the workers, however, some of the employees are yet to be paid and have further submitted that, if CP(IB) No. 759 of 2019 is not allowed to be withdrawn in that event, it become difficult to regularise the company's work. It is further submitted that, if any, creditors have any grievances they may file a separate application before this Adjudicating Authority for redressal of their grievances, as the withdrawal of the CP(IB) No. 759 of 2019 is not going to affect other creditors and/or any of the application if pending, before this Adjudicating Authority. 7. Learned Lawyer Mr. Kunal Kanungo is representing the employees/workers of the company/Corporate Debtor and has fairly submitted that they are supporting the withdrawal application so filed by the Applicant/Corporate Debtor as the livelihood of the employees and workers are under stake and if the withdrawal is not allowed in that event there will be serious repercussion upo....
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....the course of hearing in routine manner as well as when a special Bench is constituted, the daily order could have been passed in the following manner: So and so appeared on behalf of respective parties and made submissions. After due consideration of facts, these submissions, we are of the view that there are no situation of urgency for pre-ponement of hearing of subject application. Accordingly, we reject this prayer and hold that the matter be heard by regular Division Bench on its scheduled dare of hearing i.e., 01.03.2021. In the mean time, we direct the IRP to continue with the procurement of material with the related party as done earlier in spite of the requirement of approval of Committee of Creditors under Section 28 of IBC, 2016, if any." Or at best, the order could be passed in the following manner in the alternate: At the very outset, the intervener objected to pre-ponement of the hearing without any intimation to him and also for the reason that there was no hurry to accept the mentioning made by the applicant and that too without any evidence on record as the hearing before regular Division Bench was going to happen on 01.03.2021 o....
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.... care of interest of all the stakeholders involved and can be permitted is a decision to be taken by the Adjudicating Authority on the peculiar facts of the case (emphasis supplied). It would, therefore, be appropriate for the Appellant to approach the Adjudicating Authority to seek exit from CIRP by filing the terms of settlement and the Adjudicating Authority will have to pass the appropriate order. Since it is submitted by learned counsel for the Appellant that the Adjudicating Authority could not be accessed due to holidays, we deem it appropriate to dispose off this appeal with direction to Appellant to approach the Adjudicating Authority for seeking exit after filing Settlement Terms before it. To enable the Appellant to seek such exit, we direct that the COC shall not be constituted for one week from today. Liberty is granted to the Respondent to oppose such motion if permissible in-law." (b). Thereafter, an application was filed before this Authority on 06.01.2021. One financial lender intervened and objected to setting aside the order of CIRP. The time was given to file its response and the Corporate Debtor was also, during the course of hearing, orally i....
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....t aside in the facts and circumstances of the case as legal position was against the applicant. 16. Learned senior counsel for the IRP also appeared. On a query from us that only CIRP had been stayed and IRP was not in any manner stopped from running the affairs of the Corporate Debtor as a going concern as per the scheme and provisions of IBC, 2016, hence, what was the stand of IRP and real situation? 17. Learned senior counsel categorically pointed out that the business affairs of the Corporate Debtor were being run by the IRP in much better manner than the Suspended Management of the Corporate Debtor. It was also pointed out that there were no outstanding wages and no labour unrest. The learned senior counsel thereafter submitted that only problem which was causing some issues was that IRP had to procure certain raw material from a party which was a related party of the Corporate Debtor and without approval of COC under Section 28 of IBC, 2016, it could not be done. On this aspect, I pointed out that provisions of Section 28 were very clear and would apply only when there was a variation of terms and conditions of appointment with related party and not otherwise. It was....